When is it religious discrimination?

I am a truck driver and have been on “light duty” for the past several weeks. Last week my supervisor told me to take one of the office girls to the bank to make a company deposit. The other employees made crude remarks about her and me. I then refused to take her. I explained to my supervisor that I felt it would be inappropriate for me (being married) to take her because of my religious beliefs. After yelling and swearing at me in front of the other employees he told me to go home without the overtime pay. Then he told another employee (with less seniority) to take her, which he did.

Was I wrong to say no? Was he wrong to send me home?

Ann Kiernan replies:

If your religious beliefs forbid you to be in a car with a woman you are not married to, then from a religious standpoint you were correct. But you were also insubordinate in refusing a legitimate direction from your boss. Just because your motives were religious doesn’t automatically excuse you from discipline, since an employer has only a minimal obligation to accommodate religious beliefs.

A case similar to yours was decided on appeal in January, 2000. There, a male truck driver who was a devout Jehovah’s Witness refused to work overnight runs with female drivers, giving his religious beliefs as his reason. His termination was upheld by the courts, since his refusal to work with women disrupted the other drivers’ schedules.

However, you do not have to put up with crude remarks from your co-workers. You have a right to work in a respectful, harassment-free environment. You can let your coworkers and your boss know that you are offended by their remarks, make a complaint through your company’s procedures, file a grievance if you belong to a union, or file a claim with the Equal Employment Opportunity Commission.

Good luck.

Employer not required to accommodate religious pilgrimage

Mary Tiano sued her employer Dillard Department Stores for failure to make reasonable accommodation of her religious beliefs. Tiano was a top sales person for many years and a devout Roman Catholic. In late August of 1988, she learned of a pilgrimage to Medjugorje, Yugoslavia taking place between October 17 and October 26. Several people have claimed that visions of the Virgin Mary appeared to them in Medjugorje, although the Catholic Church has not designated Medjugorje an official pilgrimage site of the Church. Tiano testified that on August 22, 1988, she had a “calling from God” to attend this pilgrimage.

Tiano requested an unpaid leave of absence to attend. Dillard’s vacation policy prohibited employees from taking leave between October and December, the store’ s busy holiday season. As a result, Tiano’s request was denied. She went anyway, and when she returned to work she was informed that she had voluntarily resigned and would not be offered reemployment.

The Court of Appeals held that the employee must establish a prima facie case by proving that she had a bona fide religious belief, the practice of which conflicted with an employment duty. The court said that the evidence showed only a bona fide religious belief that she needed to go to Medjugorje at some time; she failed to prove she was required by her religion to go on the specific dates she requested in October. The Court said in this case, she was asking her employer to accommodate her personal preferences about the timing of the trip, which is not protected by law.

Employee takes religious freedom too far

A supervisor who was an evangelical Christian sent letters to her manager and one of her subordinates in which she told them they were not pleasing God and that they should stop sinning before it is too late. After investigating, the employer terminated the supervisor’s employment because the letters deeply offended the people who received them, disrupted the workplace and invaded their privacy.

The supervisor sued for failure to reasonably accommodate her religion. The Court of Appeals held that this was not the type of behavior an employer was required to accommodate, and upheld the termination. The court relied heavily on the fact that this person was a supervisor, with additional responsibilities as a result.

Chalmers v. Tulon Corp.,
72 FEP Cases 747 (4th Cir, 1996)

Don’t force workers to celebrate birthdays

The EEOC has sued Chi Chi’s Mexican Restaurant in Baltimore for firing a waitress who was fired allegedly for refusing to sing “Happy Birthday” to customers. The waitress is a Jehovah’s Witness and the religion forbids celebrating birthdays. The case will go to trial later this year.

This is a good reminded to managers everywhere that not all cultures and religions celebrate birthdays. When managing in a multi-cultural context, do not assume that all employees want to participate in birthday parties. If your group likes to have birthday parties, when a new employee joins, you can say, “Our group likes to celebrate birthdays. If you would like to participate, let me know.” That leaves it open for the employee to decline.

First Amendment overrides religious harassment policy

What should an employer do about proselytizing by religious employees? In this case, the employer prohibited employees from discussing religion while on the premises. The employer also prohibited religious displays in employee offices and cubes.

In this case, the employer was the State of California, which like all government employers is subject to the First Amendment. The Ninth Circuit Court of Appeals held that the right to freedom of speech overrode the employer’s rules. Employees could not be prohibited from discussing religion (although reasonable time, place and manner restrictions could be allowed).

Private employers take note: although you are not subject to the First Amendment, you are liable to a successful First Amendment claim. If you say you are prohibiting religious speech in order to follow the law to provide a harassment-free environment, the accused harasser may be able to argue successfully that the law violates his or her right to free speech. If, on the other hand, you say you are enforcing your policy, independent of any law, then the First Amendment is not implicated.

For case excerpts:

Monte Tucker, the plaintiff-appellant, is a deeply religious man who works as a computer analyst in the California State Department of Education. He contends that orders promulgated by his supervisors that forbid employees in his division from engaging in any oral or written religious advocacy in the workplace and displaying any religious artifacts, tracts or materials outside their offices or cubicles violate his rights to freedom of speech guaranteed by the First Amendment. Although the government may have legitimate interests in preventing a number of the activities in which Tucker has engaged or wants to continue to engage, the challenged orders are overbroad and impermissibly infringe on First Amendment rights. Accordingly we reverse the district court order granting summary judgment for the government and direct that summary judgment be issued in favor of Tucker.

Facts and Procedural History

Tucker has worked as a computer analyst for the State Department of Education since 1977. He is currently employed in the Child Nutrition and Food Distribution Division. His religious beliefs command him to give credit to God for the work he performs. In 1988, he decided to comply with this command by placing the phrase “Servant of the Lord Jesus Christ” and the acronym “SOTLJC” after his name on the label of a software program he was working on. The program, with the acronym, was distributed within the department. Tucker began placing the acronym on other material he was working on. Shortly thereafter, his supervisor, James Phillips, instructed him not to use the acronym. After a series of orders and warnings, Tucker was suspended for five days in May 1988.

On February 7, 1989 Balakshin issued the following orders to all employees of the Child Nutrition and Food Distribution Division, including Tucker, which provide that they may not:

Store or display any religious artifacts, tracts, information or other materials in any part of the workplace other than in their own closed offices or defined cubicles;

Engage in any religious advocacy, either written or oral, during the work hours or in the workplace.

Place any personal acronym, title, symbol, logo, or declaration unrelated to the business of the Department on any official communication or work product. Conclusion

Because the state’s justifications for the ban [on religious advocacy] are meritless, we hold that its asserted interests do not outweigh “the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression”. Treasury Employees, 115 S.Ct. at 1014). Nor does the banned expression have a ” ‘necessary [adverse] impact on the actual operation of the Government.’ ” Id. (quoting Pickering, 391 U.S. at 571). Accordingly, we hold that the order violates the free speech clause of the Constitution.

Our analysis of the second challenged order, which prevents the display of religious materials outside employees’ cubicles or offices, is similar to our analysis of the restrictions on religious advocacy. There are, however, important distinctions between restricting employees’ speech at the workplace and prohibiting employees from using the state’s walls, tables or other space to post messages or place materials. The government has a greater interest in controlling what materials are posted on its property than it does in controlling the speech of the people who work for it, especially when its employees are engaged in private conversation among themselves. There is a greater likelihood that materials posted on the walls of the corridors of government offices would be interpreted as representing the views of the state than would private speech by individual employees walking down those same corridors.

We conclude that it is not reasonable to allow employees to post materials around the office on all sorts of subjects, and forbid only the posting of religious information and materials. The challenged ban not only prevents employees from posting non-controversial information that might interest some or all employees — such as bulletins announcing the time and location of church services, invitations to children of employees to join a church youth group, and newspaper clippings praising Billy Graham, Mother Theresa or Cardinal Bernardin — it would also ban religious messages on controversial subjects such as abortion, abstinence of various types, family values, and the v-chip. Material that addresses controversial topics from a non-religious viewpoint would, however, be permissible, as would signs inviting employees to motorcycle rallies, swap meets, x-rated movies, beer busts, burlesque shows, massage parlors or meetings of the local militia. The prohibition is unreasonable not only because it bans a vast amount of material without legitimate justification but also because its sole target is religious speech.

The state has simpler and far less restrictive alternatives available to it, such as setting up employee bulletin boards and limiting all employee postings to those sites, or permitting postings generally in the parts of the building not ordinarily visited by the public. Reasonable content-neutral restrictions on the space to be used and the duration of the posting would not be inconsistent with the first amendment. Any regulations would of course be subject to the principles governing content and viewpoint discrimination. The state might also, in a properly drawn order, ban the exhibition of religious symbols, artifacts or other similar items, which might reasonably convey an impression of state endorsement — or at least it might do so in areas outside of the employees’ private office space. The constitutionality of any such order would depend of course on all of the circumstances involved in the particular case.

Small facility ordered to accommodate Sabbath

Employers are required to allow employees days off for religious observances, unless it would create an undue hardship.

In this case, the employer was an agricultural inspection station at the border in Yerma, California. There were 15 agents who worked around the clock, 365 days a year. By law, their schedules were randomly assigned so that truckers wouldn’t know who was scheduled to work to decrease the probability of bribery. The job posting said employees must work nights, holidays and Sundays.

An employee who was a Seventh Day Adventist was hired. He asked for sundown Friday through sundown Saturday off each week. The employer took an “informal poll” (undocumented) in which employees reportedly said they might consider occasionally switching schedules with the new employee. The employer thought it over and decided reasonable accommodation was impossible.

As you can imagine, the Ninth Circuit had a field day with this one. See case excerpts for what the court said the employer should have done.

Small Facility Ordered to Accommodate Sabbath, case excerpts.

Although the State negotiated in good faith, there is no evidence that it ever made any proposal to [the employee] Opuku-Boateng. Therefore, the next issue is whether Opuku-Boateng’s proposed accommodations would have resulted in undue hardship to the State or his co-workers. As we have noted, the proposed accommodations included excusing him from Sabbath work and scheduling him instead for other equally undesirable shifts, adopting a system of voluntary or mandatory shift trades, employing a combination of the above procedures, arranging a transfer to another department, and making a temporary accommodation, which would have allowed the State to experiment with the various proposals while permitting both it and Opuku-Boateng to make efforts to find him other employment with the Department or another State agency.

Second, the evidence introduced by the State as to its ability (or lack thereof) to accommodate other employees’ scheduling desires was wholly inadequate. Third, hypothetical morale problems are clearly insufficient to establish undue hardship. “Even proof that employees would grumble about a particular accommodation is not enough to establish undue hardship.” Anderson v. General Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (1978), cert. denied in International Ass’n of Machinists and Aerospace Workers AFL-CIO, 442 U.S. 921 (1979); Burns v. Southern Pac. Transp. Co., 589 F.2d 403, 407 (9th Cir. 1978), cert. denied, 439 U.S. 1072 (1979).[FOOTNOTE 24] Likewise, the mere possibility that there would be an unfulfillable number of additional requests for similar accommodations by others cannot constitute undue hardship. See Burns, 589 F.2d at 407 (rejecting contention that “accommodating [the plaintiff] would open the gate to excusing vast numbers of persons who claimed to share [the plaintiff’s] beliefs,” where the record established that only three of the union’s members were Seventh Day Adventists).

Can we require 24-hour availability?

Have you heard about a court case (possibly in 1996) in which someone filed a discrimination claim and won because the potential employer had a statement on the job application that said something like: “You must be available for any 24-hour shift any day of the week.” We are trying to determine if it is discriminatory to have such a statement on the application form or if it’s legal as long as there is a genuine business reason and it is a BFOQ.

Rita Risser’s Response:

Good memory! The case is OPUKU-BOATENG v. STATE OF CALIFORNIA, ___ F.4th ____, 96 C.D.O.S. 7003 (9th Cir.,1996). The case did not hold that such language was illegal, but it did limit how you could use that restriction in practice.

The case involved a member of the Seventh Day Adventist faith who applied for a position where 24-hour availability was required by federal law. After he was hired, he told the employer he could not work from sundown Friday through sundown Saturday each week. The employer took an “informal poll” (undocumented) in which employees reportedly said they might consider occasionally switching schedules with the new employee. The employer thought it over and decided reasonable accommodation was impossible.

As you can imagine, the Ninth Circuit had a field day with this one. Employers are required to allow employees days off for religious observances, unless it would create an undue hardship.

The Court said there were many accommodations that could have been made, including excusing him from Sabbath work and scheduling him instead for other equally undesirable shifts, adopting a system of voluntary or mandatory shift trades, employing a combination of the above procedures, or arranging a transfer to another department (this for a new employee!)

The Court also said, “Hypothetical morale problems are clearly insufficient to establish undue hardship. Even proof that employees would grumble about a particular accommodation is not enough to establish undue hardship. . . . Likewise, the mere possibility that there would be an unfulfillable number of additional requests for similar accommodations by others cannot constitute undue hardship.”

So, you can have the statement you propose on your application, and legitimately reject any applicant who can’t meet that requirement, unless the applicant has a religious reason for not working certain hours. You also may be required to accommodate someone with a disability who can’t work all hours. As a precaution, I suggest you include a statement on your application that “If you have a religious or medical reason you cannot meet this requirement, reasonable accommodation will be made as required by law.” If you are faced with a request for accommodation, do contact an employment lawyer. Good luck!

What is the legal relationship between my work and my religious beliefs ?

I work at a major retail store in Indiana. I like my job, but alcoholic beverages are sold at the store. Because of my spiritual beliefs; I don’t want to handle the alcoholic beverages. I feel this could be a source of conflict between my employer and me. Do I have any recourse in regards to this issue?

Rita Risser’s Response:

The U.S. Supreme Court ruled in Ansonia Board of Education v. Philbrook, 479 U.S. 60, that employers are required to reasonably accommodate employee’s religious beliefs if to do so would not create an undue hardship on the employer. The employer is not required to give the employee the accommodation he wants; any accommodation will do.

In another case like yours, some postal workers had religious objections to registering young men for the draft. For a while, the post office allowed these clerks to refer a draft registrant to the next available clerk. But then the postal service said do it or we will give you another assignment (no loss in pay, but it was in the back room). The clerks sued and lost. APWU v. Postmaster General, 781 F.2d 772 (9th Cir. 1986).

In your case, it depends upon how many other positions are available for you. They do not have to create a new position, or throw the whole place into chaos. But neither can they dismiss you out of hand. They must give your request serious consideration.

I have a question, though. Why work in a place that sells liquor? Wouldn’t you feel better in a more wholesome environment?

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

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